Andhra HC (Pre-Telangana)
Kamala Bai And Ors. vs E. Rajeswari on 31 December, 1996
Equivalent citations: 1997(1)ALT797, 1997 A I H C 2557, (1997) 1 RENCR 569, (1997) 2 ANDHLD 184, (1997) 1 ANDH LT 797
JUDGMENT S. Dasaradha Rama Reddy, J.
1. This is a revision filed by tenants arising out of eviction petition filed by the landlady on the ground of wilful default in payment of rents from November, 1991 to August, 1992 at the rate of Rs. 155/-per month. In the counter, the tenants pleaded that there is no fixed date for payment of rent, that they have been depositing rents in court pursuant to the order of the Rent Controller in R.C.3/92 and that they have not defaulted. Having lost in both the courts, the petitioners have come up with this revision.
2. Mr. N.V. Ranganadham, learned senior counsel for the petitioners contended that as the rent sent by tenants for the month of November, 1991 by money order was refused by the respondent and returned to the petitioners on 13-11-1991, they sent lawyer's notice dated 11-12-1991 despatched by registered post acknowledgement due on 12-12-1991 calling upon the landlady to nominate a bank so that they can deposit the rents in the bank. On the same day rents for November and December 1991 were sent by M.O. This notice and money order were refused and returned to the petitioners on 16-12-1991. Immediately the petitioners approached the Rent Controller by filing R.C. 3/92 on 30-12-1991 and obtained permission of the Court in LA. 6/92 on 20-10-1992 filed along with R.C. 3/92 to deposit the rents in Court. In accordance with this order, they have been paying the rents regularly and sometimes in advance also. Thus, Mr. Ranganadham submits that the tenants have not committed any default. In support of his assertion he has filed C.M.P. 12594/95 to receive Exs. B-l to B-4 as additional documents. The admission of additional evidence is opposed by the counsel for landlady on the ground that they are not genuine. In the affidavit it is stated that the documents were marked as Exs. P. 1 to P. 4 in R.C. 3/92 under Section 8 of the A.P. Buildings (Lease, Rent and Eviction) Control Act (for short the 'Act'). As the documents were already filed in the Court in another proceeding, I order the petition. Mere admission of documents does not mean that they are genuine (and) proved.
3. Ex. B-l is the money order coupon said to have been sent by one Ramakishan who is the deceased husband of the 1st petitioner. This bears postal endorsement 'refused by the payee'. No amount is mentioned in it and in order to show the amount, the learned counsel for petitioners relied on M.O. receipt No. 4662 which is written on the endorsement but which was however not filed. Mr. M. Rama Rao, learned counsel for the respondent-landlady contends that Ex.B-1 is suspicious as the sender is different, no amount is shown and it is also not probable since rent for November was not due by 13-11-91. The next document is Ex. B-2 dated 11-12-1991, office copy of the legal notice issued by the tenants to the landlady. In that notice it is alleged that as the landlady has failed to come for collection of the rent, in accordance with usual practice, for the month of November, 1991, the rent for November was sent by M.O. and as it was refused, the landlady was asked to nominate the Bank in which the tenant can deposit the rents from November, 1991, within 10 days from the date of receipt of the notice. Ex. B-4 is the postal envelope returned with the endorsement as 'refused'. Ex. B-3 is again M.O., coupon signed by one of the tenants for Rs 310/- towards rents for the months of November and December, 1991 on 12-12-1991 which is said to have been refused by the landlady. Mr. M. Rama Rao vehemently contended that the alleged endorsements in Exs. B-3 and B-4. are manipulated and cannot be treated as true in the absence of examination of postman. He further submits that there is no reference to Ex. B-3 in Ex. B-4 or vice versa though they are alleged to have been issued simultaneously. It is also his contention that having issued notice to nominate the Bank, it is not in accordance with normal conduct to send rent immediately, more so, when rent for December, 1991 was due only by 5th January, 1992. It is also not probable that the rent for November, which was alleged to have been refused earlier would have been sent again along with rent for December, 1991. He has drawn my attention to the alleged left thumb impression of his client on Ex.B-3, which would not have been there, if she has refused. Mr. Rama Rao further submits that Ex.B-1 is not in accordance with proforma of M.O. coupon. Thus Exs. B-l, B-3 and B-4 cannot be accepted as genuine and accordingly it follows that the tenants have not paid rents for the period from November, 1991 onwards till 20-10-1992.1 agree with the contention of Mr. Rama Rao. The burden of proving the endorsements of refusal is on tenant. The decision in Maiku v. Vilayat Hussain through Lrs, supports Mr. Rama Rao. Ex. B-l, Ex. B-3 and Ex. B-4 cannot be accepted as genuine in the absence of examination of postman as held in Jabir Hussain vs. Asgar Hussain, 1985 (2) ALT 294 and also in view of the inconsistent and suspicious features therein. Even assuming that Ex. B-l, Ex. B-3 and Ex. B-4 are true, let me now consider whether the tenants are in default.
4. The contention of Mr. Ranganadham is that as the landlady refused to receive money orders towards rent for November and December, 1991, the tenants immediately approached the Rent Controller under Section 8 of the Act and filed R.C. 3/92 on 30-12-1991 and also moved the court for interim direction in LA. 6/92 for permitting them to deposit the rents in the Court. This LA. underwent number of adjournments at the instance of the landlady who opposed it and finally the learned Rent Controller allowed the LA. on 20-10-1992 permitting the tenant to deposit the rents in future before 5th of every succeeding month and arrears on of before 31-10-1992. Pursuant to this order, the tenants have deposited arrears immediately on 23-10-1992 and have been depositing the rents regularly and thus there is no default. His further , submission is that until the Court orders the petition and issues the challan, the tenant cannot deposit the amount in the treasury. Mr. Ranganadham further contended that procedure in Section 8 of the Act is not mandatory and it has to be seen in substance whether the conduct of the tenant is bona fide and whether the conduct of the landlord is mala fide. He submitted that the tenants' conduct is bona fide from the beginning as they have been promptly sending M.Os. and after refusal approached the Court and depositing the rents in Court, immediately after obtaining the orders of the Court and that on the other hand the conduct of the landlady is mala fide in refusing to accept the M.Os. and notice and in opposing deposit of rents in proceedings under Section 8. He also submitted that even assuming that under Section 8(5) of the Act, deposit has to be made without waiting for the order of the Court under Section 8, the non-deposit is not wilful as tenants were under the bona fide impression that they have to deposit only after order is passed by the Court. Section 8 of the Act reads as follows:
"Sec. 8: Right of Tenant paying rent or advance to receipt:
(1) Every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent.
(2) Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord.
Provided that such bank shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within three miles of the limits thereof. Explanation: It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this Sub-section.
(3) If the landlord specifies a bank aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building.
(4) If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or specifies a bank in which the rent shall be deposited in accordance with the provisions of Sub-section (2).
(5) If the landlord refuses to receive the rent remitted by money order under Sub-section (4) the tenant may deposit the rent before such authority and in such manner as may be prescribed and continue to deposit any rent which may subsequently become due in respect of the building, before the same authority and in the same manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the person held by the Controller, to be entitled to the amount on application made by such person to the Controller in that behalf."
5. Mr. Ranganadham relies on M. Venkateswara Rao vs. K.V. Subbamma, 1978 (1) ALT 503 wherein Justice B.P. Jeevan Reddy, as he then was, held that when the landlord refuses to receive the rent, it follows that tenant was not unjustified in deducting M.O. commission and sending the rents by M.O., that the procedure prescribed by Section 8 of the Act is not mandatory and that it cannot be said that whenever the procedure stated in Section 8 is not followed, it must be concluded that the tenant is guilty of wilful default. This decision is of no avail to the petitioners. In that case, after refusal of the rent by the landlady, the tenant sent rent by M.O. deducting commission and when that was also refused, the tenant sent full rent by M.O. again. Even before the refusal of the second money order, the tenant issued notice calling upon the landlady to name the bank in which the rent should be deposited but the landlady refused to name the bank. In the mean time, the second money order was also refused. Thereupon, the tenant filed I. A. in the CM. A. filed by the landlady against the order of Rent Controller dismissing the eviction petition filed by her earlier on the grounds of nuisance and personal requirement, for permitting him to deposit the rent in that Court. Meanwhile, the landlady instituted eviction petition on the ground of default. Soon after the receipt of notice of summons, the tenant deposited rents in that Court. The Courts below held that in view of refusal to name the bank by the landlady, the tenant ought to have followed further steps contemplated in Section 8 and having not done so, the tenant has to be considered to be in default. But this Court held that procedure prescribed in Section 8 is not mandatory and that the entire circumstances must be viewed before inferring that the tenant has committed wilful default. This case does not help the petitioners, since the petitioners in the present case, immediately after refusal of the rent for November, 1991, opted for procedure prescribed in Section 8 by issuing notice Ex. B-2 under Section 8(2) of the Act. When the landlady has refused to receive this notice, it is deemed that she has not specified the bank. Then the tenants ought have sent the rent by M.O. after deducting M.O. commission and continue to remit the subsequent rent as per Section 8(4), till the landlady signifies by written notice her willingness to accept the rent or specifies the bank. If the landlady refuses even the rent so remitted under Section 8(4), then the tenant has to deposit the rent under Section 8(5) of the Act before the Court. Here, the tenants after having issued notice under Section 8(2) did not even wait for the acknowledgement and on the other hand even according to the tenant, sent the rent simultaneously. This procedure is not in accordance with Section 8(4) or Section 8(5) since there was no remittance of rent under Sub-section (4) to constitute refusal by the landlady to justify the tenants to have recourse to Section 8(5).
6. The next decision relied on by Mr. Ranganadham is Jamjetti Sathyanarayana vs. M. Narsimloo, 1985 (2) ALT 169 where after holding that Section 8 is directory and not mandatory, Justice K. Amareswari held that sending of rent by M.O. as contemplated in Section 8(4) arises only in case where the money order is accepted by the landlord and in case of rejection or refusal it is not obligatory on the part of the tenant to continue to send the amount by M.O. and failure to do so does not amount to wilful default. The learned Judge followed the decision of the learned single Judge of Madras High Court in Govindammal vs. Rangaswami Naicker, 1956 (2) MLJ 69 where Justice Basheer Ahammed has taken the view that if the tenant without complying with the procedure contemplated under Section 6-A of the Madras Act (Sec. 8 of A.P. Act) sends the rent by money order which is refused by the landlord, failure to continue to tender the subsequent monthly rents by M.O. does not constitute wilful default. Full context of the decision is not available. So this decision cannot be analysed.
7. On the other hand Mr. Rama Rao, learned counsel for the respondent-landlady brought to my notice the decision of the Division Bench of Madras High Court in T.C.A. Anandalwar case, AIR 1949 Mad. 788. There the rent for January, 1948 payable by the end of February, was sent by telegraphic M.O. on 29-2-1948 from Baroda and it was delivered to the landlord on 1-3-1948 when he refused to accept it. Thereafter the tenant has not made any tender of rent for any subsequent months. The Division Bench consisting of Chief Justice Rajamannar and Justice Raghava Rao, held that even assuming that refusal of rent by the landlord for January is unreasonable, it cannot be said that the rent for subsequent months is neither due nor payable and that the duty is cast on the tenant to make payment and tender rent every month. But this decision was rendered before the introduction of Section 6-A of the Madras Act 1946 which is analogous to Section 8 of the A.P. Act. But this is an authority for the limited proposition that if the tenant does not opt for the procedure prescribed under Section 8, he has to remit the rent every month.
8. In C.R.P. 1114/84 dated 12-12-1986 (J. Balakrishnaiah vs. Krishna Goseva Mandal, 1987 (1) ALT 22 (NRC)) Justice K. Ramaswamy, as he then was, held following the decision of Justice B.P. Jeevan Reddy (1st supra) that where a tenant sends rent by M.O. after the landlord refuses to nominate the Bank, and after it is also refused, approaches the Rent Controller under Section 8(5) and pending application to permit him to deposit pending R.C., deposits rents regularly in a separate Bank Account, he cannot be said to be defaulter, much less wilful defaulter.
9. Now, as held by Justice B.P. Jeevan Reddy (3 surpa), Section 8 is not mandatory and a tenant instead of approaching the Rent Controller under Section 8, may continue to send rent by M.O. after deducting M.O. commission. But when the tenant has opted for the procedure in Section 8, as in the present case, he must follow the procedure and steps stated therein. The question whether the tenant instead of opting for Section 8 can remit rent by M.O. and after refusal by the landlord of the M.Os. can stop remitting, as held by Justice J K. Amareswari in Jamjetti Satyanarayana case (4 supra) does not arise in this case and hence whether that decision is contrary to the decision of Division Bench in Anandalwar case (6 supra) (which was binding on the learned single Judge being judgment delivered before 5-7-1954) need not be examined in this case. Section 8(2) is the first step. Rent for November was due only by 5th December, 1991. It is not clear why the tenant sent it earlier on 13-11-1991. After refusal of receipt of notice Ex. B-2 asking her to nominate the Bank, the tenants ought to have remitted the rent for the month of December, 1991 by M.O. before 5th January, 1992, deducting M.O. commission. But the tenants have sent rent on 12-12-1991 long before the due date and simultaneously along with Section 8(2) notice. It is only after such M.O. is also refused, the tenants have to file application before Rent Controller under Section 8(5). But after refusal of Section 8(2) notice, the tenants without sending rents by M.O. filed straightaway petition in Court under Section 8(5) on 30-12-1991 and also filed I.A. 6/92 and took advantage of delay in pending (sic. passing) order on I.A. Their conduct would have been bona fide, had they deposited the rents in a separate Bank account till the disposal of LA. as was done in C.R.P.1114/84(7 supra). The argument of Mr. Ranganadham that the petitioners were under bona fide impression that they could not deposit the amount till the court passes the order cannot be accepted as this plea was not put forward by the tenants either in the counter or in Courts below and is sought to be raised for the first time in these proceedings.
10. Mr. Rama Rao relied on Nagnln Konda Marayya vs. P.V.G. Raju, 1985 (1) APLJ 375 where Y.V. Anjaneyulu, J held that under Section 10 tenant is not absolved from his obligation to pay the rent on the due dates once he takes recourse to Section 8(5) and that Rule -5 of A.P. Buildings (Lease, Rent and Eviction) Control Rules does not confer any power to direct deposit of rent at periodical intervals. It was further held that pendency of the proceedings under Section 8(5) does not entitle the tenant to deposit at his ipsi dixit. This decision is distinguishable since in that case the due date specified by the Court is not available and it is not known whether the tenant has filed I.A. pending R.C. But, in the present case, the tenants have complied with the order passed by the Court in LA. 6/92 in R.C. 3/92. While disposing of main R.C. 3/92 on 19-7-1993, the learned Rent Controller observed that allowing of the petition is without prejudice to the rights of the landlady and that the question whether the tenants have committed wilful default or not will bes settled in the eviction petition. As already see the tenants ought to have deposited atleast in a separate Bank account as as done by the tenant in C.R.P 1114/84 (7 supra) till he obtained orders in I.A. 6/92 without waiting for 10 months (December, 1991 to October, 1992) taking technical advantage of pendency of LA.
11. To sum up, when landlord refuses to receive rent for any month, it is open to tenant to opt for Section 8 which is, not mandatory but only directory. But having opted for Section 8, by issuing notice under Section 8(2), the tenant has -to follow diligently the steps stated in Section 8(3) to Section 8(5) namely, if landlord refuses to nominate the Bank, he has to send the rent by M.O. deducting the M.O. commission and continue to remit in the same manner till landlord expresses his willingness to accept the rent or specifies the Bank. If the landlord refuses to receive rent so sent by M.O., the tenant has to deposit it in court by filing application under Section 8(5). But mere filing of application does not absolve the tenant from obligation to remit the rent before the due date. He has to obtain orders from the court for immediate deposit or deposit the rent in a separate Bank account in order to show his bona fides. The question whether in case the tenant does not opt for Section 8, he is bound to continue to remit rent by M.O. every month or he can stop paying rents subsequently, does not arise in this case. Applying these principles to the facts of the case, Ex.B-1 and Ex.B-3 are not proved as true and the tenants have deposited the rents for the period from November, 1991, only on 20-10-1992. Even assuming that Ex. B-l, Ex.B-3 and Ex.13-4 are true, the tenants having opted for Section 8 and issued notice contemplated in Sub-section (2), failed to remit the rents in -accordance with the procedure mentioned in Sub-section(3) to (5). Thus, it has to be held that the tenants have committee) wilful default in payment of rents for the period from November, 1991 to August, 1992.
12. The C.R.P. is accordingly dismissed. No costs, FIVE MONTHS TIME is granted to the tenants to vacate the premises subject to the condition of their paying rents in time.